What happens if red states retaliate by taking Biden off the ballot?
SCOTUS faces many tricky questions. Retaliation is not one.
As legal experts have dissected the Supreme Court arguments in Trump v. Anderson, the Colorado ballot-disqualification case, their focus has — rightly — mostly been on the intricacies of the Fourteenth Amendment and ballot access considerations. But as the days have passed, I keep returning to a back and forth between Justice Alito and the Colorado Solicitor General in the final minutes of the argument:
Justice Alito: Well, just one further question, and it’s along the same lines of a lot of other questions. We have been told that if what Colorado did here is sustained, other states are going to retaliate and they are going to potentially exclude another candidate from the ballot. What about that situation?
When the Solicitor General pointed out that courts — including the Supreme Court — will be able to review those decisions and ensure that states only disqualify candidates who actually engaged in or supported insurrection, Justice Alito sounded taken aback:
Justice Alito: You don’t think that’s a serious threat?
Ms. Stevenson: I – I think we have processes –
Justice Alito: We should proceed on the assumption that it’s not a serious threat?
Ms. Stevenson: I think we have institutions in place to handle those types of allegations.
Justice Alito: What – what are those institutions?
Ms. Stevenson: Our – our states, their own electoral rules, the administrators who enforce those rules, the courts that will review those decisions, and up to this Court to ultimately review that decision.
This exchange — along with a similar line of questioning from Chief Justice Roberts earlier in the argument — should set off alarm bells for anyone concerned about the rule of law in our country. Think about what it would mean for a state to “retaliate” in this way: In the absence of any other presidential candidates who plausibly participated in insurrections, the officials who run elections, and the judges who oversee them, would have to disregard the meaning of the word “insurrection” in favor of a tit-for-tat effort to punish their political opponents. And in last week’s argument, Justice Alito suggested that the legal system might be powerless to stop them.
Justice Alito is surely right that if Colorado is permitted to remove former President Trump from the ballot, some officials in other states may attempt to remove President Biden from the ballot on the same basis. (Note, however, that South Dakota governor and Trump ally Kristi Noem has dismissed the idea.) We’ve seen parallel threats from former President Trump, who responded to the criminal charges against him by threatening to pursue charges against President Biden: “If I don't get Immunity, then Crooked Joe Biden doesn't get Immunity. . . . By weaponizing the DOJ against his Political Opponent, ME, Joe has opened a giant Pandora’s Box.” Pursuing baseless charges against political rivals is a core tactic of the autocratic playbook and a major warning sign for democracy.
But the Supreme Court can’t stave off democratic decay by prematurely conceding to these threats. To the contrary, the appropriate response is to hold the line: facts matter, words matter, law matters. The mere fact that a political opponent might try to label conduct “insurrection” doesn’t make it so. (Indeed, Justice Alito’s concern that “insurrection” will become a free-floating weapon to use against political opponents is somewhat ironic, coming as it does from a purported textualist, for whom the meaning of words is meant to be paramount.) As the Colorado Solicitor General pointed out, there’s an entire legal apparatus — up to and including the Supreme Court — available to hold state officials to the letter of the law.
Taken to its logical extreme, Justice Alito’s concern — that applying the law in one instance could lead to disingenuous misuses of it in others — might lead him to disavow any use of civil or criminal law against political actors. Any anti-corruption, campaign finance or tax law — indeed, almost any law at all — has the potential to be invoked in a retaliatory scheme against political opponents. But the essence of the rule of law is an independent judiciary with the power to quash frivolous actions while allowing legitimate uses of law to proceed.
And recent history contains numerous instances of the rule of law holding firm against political considerations. In 2020, judges — including numerous Trump appointees — almost uniformly rejected frivolous, evidence-free challenges to the conduct of the presidential election, smoothing the way for the certification of the election results. Last year, federal prosecutors in the Department of Justice under the Biden administration charged Democratic Senator Bob Menendez with a startling array of corruption charges. And over the past year, in cases against former President Trump and Rudy Giuliani, ordinary Americans sitting on juries — having been warned that they might face threats and intimidation if their identities were disclosed — have listened carefully to the evidence and found that powerful figures were liable for the harms caused by their lies.
Trump v. Anderson presents challenging legal questions, but the threat of “retaliation” isn’t one of them. As the Colorado Solicitor General argued last week, in this case — and others — the Supreme Court should focus on the legal considerations, not the political ones.